1

August 28, 2015 Via Mail Electronic Filing Jolie Harrison Chief, Permits and Conservation Division Office of Protected Resources National Marine Fisheries Service 1315 East-West Highway Silver Spring, MD 20910 Re: Comments in Response to Applications for Incidental Harassment Authorization Related to Geophysical Survey Activity in the Atlantic Ocean Dear Ms. Harrison: On behalf of Sea Shepherd Legal, I submit the following comments in Response to Applications for Incidental Harassment Authorization Related to Geophysical Survey Activity in the Atlantic Ocean. Thank you for the opportunity to comment. Respectfully submitted, /s/ Catherine Pruett, JD, MPA Executive Director Sea Shepherd Legal Encl.

Sea Shepherd Legal

2226 Eastlake Ave. E#108

Seattle, WA 98102-3419

+1 541-418-1780

www.seashepherdlegal.org

2

Sea Shepherd Legal (SSL) is an international, nonprofit, public interest environmental law firm with a mission to save marine wildlife and habitats by enforcing, strengthening, and developing protective laws, treaties, policies, and practices worldwide. SSL works on a range of matters from ensuring proper governmental agency action to developing innovative policy approaches to encourage greater protections for marine wildlife and ecosystems.

I. Introduction

SSL submits these comments in an effort to protect marine wildlife from significant threats associated with proposed high-intensity seismic surveys in the Atlantic Ocean. The risk of harm to threatened and endangered marine mammal species, including critically endangered right whales, as well as important habitat areas is significant. SSL's goal is to persuade the National Marine Fisheries Service (NMFS) to uphold its responsibility of "stewardship of the nation's ocean resources and their habitat."1 As NMFS acknowledges, "[t]he resilience of our marine ecosystems and coastal communities depend on healthy marine species, including protected species such as whales, sea turtles, corals, and salmon."2 NMFS has been tasked with securing that resilience through, among other things, appropriately implementing the Marine Mammal Protection Act (MMPA).3 Should NMFS permit the proposed geophysical surveys, it would fail in this duty and abandon its post as the steward of our oceans and marine wildlife. II. Conservation Takes Highest Priority When enacting the MMPA,4 Congress mandated that conservation, including maintaining healthy populations of marine mammals, is of highest priority. The legislative history of the MMPA makes it clear that the precautionary principle must be applied and that any bias must favor marine mammals.5 The courts have agreed. In Comm. For Humane Legislation v. Richardson, the court stated that any action subject to the MMPA, must “proceed knowledgeably and cautiously”6 and that the MMPA must be interpreted and applied for the benefit of marine mammals “and not for the benefit of commercial exploitation.”7 Similarly, in

1 NMFS mission statement at http://www.nmfs.noaa.gov/aboutus/our_mission.html (last visited July 30, 2015). 2 Id. 3 Id. 4 16 U.S.C. 1361 et seq.

5 H.R. REP. NO. 92-707, at 24 (1971); 118 CONG. REC. S15680 (daily Ed. Oct. 4, 1971) (statement of Sen. Packwood). 6 414 F. Supp. 297, 310 at n. 29 (D.D.C. 1976), aff’d, 540 F.2d 1141 (D.C. Cir. 1976). 7 Id. at 24 (emphasis added).

3

Kokechik Fishermen’s Ass’n v. Secretary of Commerce, the District of Columbia Circuit Court of Appeals held that when balancing commercial fishing interests with the conservation goals of the MMPA, “the interest in maintaining healthy populations of marine mammals comes first.”8 In Section 2. Findings and Declaration of Policy, the MMPA states:

(6) marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the carrying capacity of the habitat.9

III. The Proposed Surveys Will Have a Significant - Not Just "Negligible"

Impact on Marine Mammal Populations Pursuant to Sections 101(a)(5)(A) and (D) of the MMPA, the Secretary of Commerce may allow the incidental, but not intentional, take of small numbers of marine mammals. To permit incidental take, NMFS must find that proposed take will have only a "negligible impact" on the species or stocks. ``Negligible impact'' is defined in 50 CFR 216.103 as "an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.'' In issuing a take permit, NMFS must also ensure that the proposed take will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and that any permitted taking activities clearly include appropriate mitigation, monitoring and reporting protocol. The burden of proof is borne by any party proposing to take marine mammals, or take actions contrary to the MMPA. This “is by no means a light burden.”10 The intent behind the MMPA's “set of requirements is to insist that the management of the animal populations be carried out with the interests of the animals as the prime consideration.”11

8 839 F.2d 795, 802 (D.C. Cir. 1958), cert. denied sub nom; See also Verity v. Center for Envtl. Educ., 988 U.S. 1004 (1989). 9 16 U.S.C. §1361. 10 H.R. REP. NO. 92-707, supra, at 4. 11 Id. (emphasis added).

4

The survey applicants cannot realistically meet their burden of proof, nor can NMFS in good conscience permit their proposed activities. As set forth more fully below, SSL is extremely concerned that, if permitted, the proposed geophysical surveys would have far greater than a mere "negligible impact" on marine mammal species or stocks. SSL also has very grave concerns that the proposed activities fail to include any functional and effective mitigation protocols. IV. The Proposed Surveys Pose Significant Threats to Marine Mammal Populations and Critical Habitats The Atlantic Ocean, the target area of the subject surveys (and, ultimately, for

destructive drilling), is home to a rich array of marine mammal species, including

federally listed threatened and endangered species such as the fin whale, humpback

whale, North Atlantic right whale, sei whale, sperm whale and West Indian manatee.12

All of these species would be at risk if NMFS permits the proposed geophysical surveys.

The proposed surveys would involve a combination of activities that would dramatically

exacerbate already problematic levels of ocean noise in the Atlantic. Ocean noise pollution from

activities including sonar, shipping, mapping, air guns, installation and operation of oil rigs and

seabed mining already create a deafening roar that impacts life-sustaining marine mammal

behaviors. The proposed geophysical surveys will entail, in part, the towing of arrays of

airguns that will be discharged incessantly - essentially around the clock. It is expected

that these extremely loud devices will be fired nearly every ten seconds, 24-hours per

day for possibly many months on end - if not year-round.13

Seismic surveys, such as the ones proposed, impact a broad range of marine

mammal behaviors including breeding, feeding, communicating, navigating, and predator

avoidance. In a recent submission to NMFS, Oceana and 34 other interested parties

provided a long list of scientifically-supported, extremely alarming statistics regarding

the impacts that seismic surveys have on marine mammals.14

We reiterate those statistics

here, with citations:

A single seismic survey can cause fin and humpback whales to cease

vocalizations, a behavior critical both reproduction and foraging15

12 National Oceanic and Atmospheric Administration, Endangered and Threatened Marine Species under NMFS' Jurisdiction, http://www.nmfs.noaa.gov/pr/species/esa/listed.htm (last visited Aug. 27, 2015). 13 Nat’l Research Council, Ocean Noise and Marine Mammals (2003). For a sample of some man-made noises in the ocean, see Emily Anthes, When Fish Shout, New Yorker, Nov. 10, 2014, http://www.newyorker.com/tech/elements/when-fish-shout. 14 See April 29, 2015 Letter to Bureau of Ocean Energy Management regarding Atlantic

Geological and Geophysical Permit Applications for Oil and Gas Development. 15 C.W. Clark & G.C. Gagnon, Considering the Temporal and Spatial Scales of Noise Exposures from Seismic Surveys on Baleen Whales (IWC Sci. Comm. Doc. IWC/SC/58/E9) (2006); Correspondence from C.W. Clark to Michael Jasny, NRDC, (Apr. 2010); see also K. MacLeod. Et al., Abundance of Fin (Balaenoptera physalus) and Sei Whales (B. Borealis) Amid

5

Baleen whales have been known to completely abandon their habitat in areas

where seismic surveys are being conducted16

Due to the characteristics of its calls, the critically endangered North Atlantic

right whale is particularly vulnerable to masking effects from airguns (where one

sound affects the perception of another sound).17

Sperm whale foraging success can decline significantly after exposure to airguns,

with potentially serious long-term consequences.18

Harbor porpoises are known to be acutely sensitive to human sound sources and

have been observed engaging in avoidance responses fifty miles from a seismic

airgun array.19

Bowhead whales migrating through the Beaufort Sea have almost completely

avoided areas where airguns were used.20

Beluga whales are highly sensitive to a range of low-frequency sounds, which can

displace belugas from near-coastal foraging areas.11521

Scientists implicated seismic surveys as a factor contributing to the long-term loss

of marine mammal biodiversity off the coast of Brazil.22

Consistent with their

Oil Exploration and Development off Northwest Scotland, 8 J. Cetacean Research & Mgmt. 247-54 (2006). 16 Id. 17 Clark, C., Mann, D., Miller, P., Nowacek, D., and Southall, B., Comments on Arctic Ocean Draft Environmental Impact Statement at 2 (Feb. 28, 2012). 18 E.g., 74 Fed. Reg. 4844, 4844-4885 (Jan. 27, 2009). 19 Clark, C.W., and Gagnon, G.C., Considering the temporal and spatial scales of noise exposures from seismic surveys on baleen whales (2006) (IWC Sci. Comm. Doc. IWC/SC/58/E9); Clark, C.W., pers. comm. with M. Jasny, NRDC (Apr. 2010); see also MacLeod, K., Simmonds, M.P., and Murray, E., Abundance of fin (Balaenoptera physalus) and sei whales (B. Borealis) amid oil exploration and development off northwest Scotland, Journal of Cetacean Research and Management 8: 247-254 (2006). 20 Risch, D., Corkeron, P.J., Ellison, W.T., and van Parijs, S.M., Changes in humpback whale song occurrence in response to an acoustic source 200 km away, PLoS ONE 7(1): e29741. doi:10.1371/journal.pone.0029741 (2012). 21 Miller, P.J.O., Johnson, M.P., Madsen, P.T., Biassoni, N., Quero, M., and Tyack, P.L., Using at-sea experiments to study the effects of airguns on the foraging behavior of sperm whales in the Gulf of Mexico, Deep-Sea Research I 56: 1168-1181 (2009). 22 E.g., Bain, D.E., and Williams, R., Long-range effects of airgun noise on marine mammals: responses as a function of received sound level and distance (2006) (IWC Sci. Comm. Doc. IWC/SC/58/E35); Kastelein, R.A., Verboom, W.C., Jennings, N., and de Haan, D., Behavioral avoidance threshold level of a harbor porpoise (Phocoena phocoena) for a continuous 50 kHz pure tone, Journal of the Acoustical Society of America 123: 1858-1861 (2008); Kastelein, R.A., Verboom, W.C., Muijsers, M., Jennings, N.V., and van der Heul, S., The influence of acoustic emissions for underwater data transmission on the behavior of harbour porpoises (Phocoena phocoena) in a floating pen, Mar. Enviro. Res. 59: 287-307 (2005); Olesiuk, P.F., Nichol, L.M., Sowden, M.J., and Ford, J.K.B., Effect of the sound generated by an acoustic harassment device on the relative abundance and distribution of harbor porpoises (Phocoena phocoena) in Retreat Passage, British Columbia, Mar. Mamm. Sci. 18: 843-862 (2002).

6

acoustic footprint, most of these impairments occur on an extraordinarily wide

geographic scale.

The break between airgun pulses hardly mitigates these harms, because the sound

can be virtually continuous once an animal is distant from an array.23

V. Proposed Surveys Place Critically Endangered North Atlantic Right Whales at Risk of Extinction

Impacts on already-depleted populations of the critically endangered North

Atlantic right whale (Eubalaena glacialis) are of heightened concern. Only a mere 455

North Atlantic right whales currently exist.24

This small population is comprised of only

100–150 breeding-age females.25

Based on the foregoing population numbers, NMFS' 2013 and 2015 draft stock

assessments indicate that the Potential Biological Removal ("PBR") rate for North

Atlantic right whales is 0.9.26

By definition, PBR is “the maximum number of animals,

not including natural mortalities, that may be removed from a marine mammal stock

while allowing that stock to reach or maintain its optimum sustainable population.”27

Unsurprisingly, NMFS acknowledges that “the loss of even a single individual

[North Atlantic right whale] may contribute to the extinction of the species.”28

Utterly shocking, however, is the fact that NMFS would even consider permitting survey

projects that could result in up to 40 Level A and Level B takes of North Atlantic

right whales. This number is not conjecture. It is based on the estimates provided by the

four survey applicants and listed in Table 1 below.29

It is perfectly reasonable to assume

23 Miller, G.W., Elliot, R.E., Koski, W.R., Moulton, V.D., and Richardson W.J., Whales, in Richardson, W.J. (ed.) Marine Mammal and Acoustical Monitoring of Western Geophysical’s Open-Water Seismic Program in the Alaskan Beaufort Sea, 1998 (1999); Richardson, W.J., Miller, G.W., and Greene Jr., C.R., Displacement of migrating bowhead whales by sounds from seismic surveys in shallow waters of the Beaufort Sea, Journal of the Acoustical Society of America 106:2281 (1999). 24 NMFS, North Atlantic Right Whale: Western Atlantic Stock (Dec. 2012), available at http://www.nmfs.noaa.gov/pr/pdfs/sars/ao2012whnr-w.pdf. 25 Id. 26 NMFS, Marine Mammal Stock Assessment Reports 10 (2013), available at http://www.nmfs.noaa.gov/pr/sars/2013/ao2013_rightwhale-west-atl.pdf; NMFS, Draft Marine Mammal Stock Assessment Reports 8 (2015), available at http://www.nmfs.noaa.gov/pr/sars/draft.htm. 27 NMFS, Protected Resources Glossary, available at http://www.nmfs.noaa.gov/pr/ glossary.htm#p (last visited Aug. 27, 2015). 28 See 69 Fed. Reg. 30,857, 30,858 (June 1, 2004); see also 73 Fed. Reg. 60,173, 60,173 (Oct. 10, 2008); 72 Fed. Reg. 34,632, 34,632 (June 25, 2007); 66 Fed. Reg. 50,390, 50,392 (Oct. 3, 2001) (emphasis added). 29 See Incidental Take Authorization Applications - In Process Oil & Gas Incidental Take Authorizations" available at http://www.nmfs.noaa.gov/pr/permits/incidental/oilgas.htm#atlgeo2015 (last visited Aug. 28, 2015).

7

that at least one - and certainly likely more - of the 40 taken will die as a result of survey

activities, making extinction of this species a very real possibility. TABLE 1:

Survey Applicant Applicant's Take Estimate of

North Atlantic Right Whales

Spectrum Geo, Inc. 11

TGS-NOPEC Geophysical Company 12

ION GeoVentures 16

TDI Brooks International, Inc. 1

TOTAL estimated take of North Atlantic right whales by subject surveys = 40

Each of the applicants claim that the take estimates do not take proposed

mitigation efforts into account.30

As discussed in Section VI below, the proposed

mitigation efforts would not be sufficiently meaningful and effective enough to diminish

the tremendous impact of the surveys.

NMFS must also consider the cumulative effect of non-acoustic impacts on North

Atlantic right whale populations from other activities. Table 2 below highlights these.

TABLE 2:

Other Current Human Impacts Other Human Impacts - Take Estimate of

North Atlantic Right Whales

Fishing gear entanglement 3.931

Ship strikes .932

Navy sonar activities 5133

U.S. Geological Survey seismic activities 334

TOTAL take caused by other current human impacts = 58

The surveys would take place directly within and thereby threaten critical habitat

for these extremely sensitive species. In 1994, for example, NMFS designated critical

habitat for North Atlantic right whale calving and nursing habitat off the coast of Florida

30 Id. 31 Waring et al., 2014 Draft Marine Mammal Stock Assessment Reports (2014), available at http://www.nmfs.noaa.gov/pr/sars/pdf/atl2014_draft.pdf. 32 Id. 33 NMFS, Takes of Marine Mammals Incidental to Specified Activities; U.S. Navy Training and Testing Activities in the Atlantic Fleet Training and Testing Study Area, 78 Fed. Reg. 73,009,

73,055 (Dec. 4, 2013), available at https://www.federalregister.gov/articles/2013/12/04/2013-

27846/takes 34 NMFS, Takes of Marine Mammals Incidental to Specified Activities; Taking Marine

Mammals Incidental to a Marine Geophysical Survey in the Atlantic Ocean Off the Eastern

Seaboard, August to September 2014 and April to August 2015, 79 Fed. Reg. 52,157, 52,159–60

(Sept. 2, 2014).

8

and Georgia.35

This area will likely be significantly expanded to include right whale

calving, nursing and rearing areas that lie within approximately forty miles of the

coastline stretching from Cape Fear, North Carolina to forty-three miles north of Cape

Canaveral, Florida.36

Indeed, these areas comprise “the only known calving ground for

North Atlantic right whales, and that the most biologically valuable portion of the

species' population is utilizing this habitat.”37

NMFS further identified over one hundred

biologically important areas that serve as breeding and feeding grounds and migratory

corridors for this species.38

These biologically important areas span from central Florida

to Georges Bank, totaling 269,448 square kilometers - again right within the target zone

for seismic surveys.39

VI. Proposed Survey Implementation Techniques Would Fail To Mitigate

Threats to Marine Mammal Populations 1. Observer Programs

The mitigation measures proposed by the survey applicants are grossly

inadequate. In particular, the applicants place most reliance upon daytime observer

programs. However, this mitigation scheme ignores the best available science on

the significant limits of visual monitoring. Visual detection rates for marine

mammals generally approach only 5 percent. This well-known inadequacy of

observer-based mitigation measures is further compounded by the undeniable fact

that such measures cannot be employed at night or under low visibility conditions.

Despite the obvious and significant limitation of the proposed observer

programs to daylight hours with good visual conditions, the applicants do not

propose any effective mitigation measures to counter this problem – such as, e.g.,

simply not operating the acoustic survey equipment at night. For example, TDI-

Brooks proposes a particularly ridiculous “solution”:

35 NMFS, Designated Critical Habitat; Northern Right Whale, 59 Fed. Reg. 28,793, 28,795 (June 3, 1994). 36 NMFS, Endangered and Threatened Species; Critical Habitat for Endangered North Atlantic Right Whale, 80 Fed. Reg. 9,313, 9,319, 9, 342 (proposed Feb. 20, 2015). See also Comment from Margaret Cooney, IFAW, to Mary Colligan, Assistant Regional Administrator of NMFS Protected Resources Division, Apr. 21, 2015. 37 Id. 38 NMFS, Press Release, Mar. 6, 2015, New Tool Aids U.S. Conservation and Management of Whales, Dolphins, and Porpoises, http://www.nefsc.noaa.gov/press_release/pr2015/scispot/ss1503. 39 NOAA, Cetacean & Sound Mapping Working Group, Biologically Important Areas, http://cetsound.noaa.gov/biologically-important-area-map (last visited Aug. 28, 2015).

9

During nighttime and other times when visibility is obscured, the

MBES system will continue to operate, in order to continue to deter

animals from entering the exclusion zone. The operational noise of the

instrument acts in and of itself a deterrent to animals. Continuous

operation of the instrument is a mitigation measure and should

include ship turns or other times when data may not be collected.

Should the instrument be shut down for any length of time, observers

should monitor the exclusion zone for thirty minutes prior to a soft-

start of the instrument. Soft-start or start-up of the multibeam by first

utilizing lower sound pressure levels will alert any unseen and nearby

animals of the acoustic source before full power is utilized. This

acoustic disturbance will aid in moving animals away from the sound

source.

Thus, this applicant apparently intends to use the very acoustic source that is

the subject of mitigation as the instrument of mitigation. There is no scientific basis

for this fanciful proposal.

The other survey applicants rely nearly exclusively upon passive acoustic

monitoring. Although passive monitoring has been recognized as an effective

mitigation measure when properly implemented, it has its limitations and, as such,

should not be relied upon exclusively. As recognized by TGS-NOPEC in its

application:

Although these systems typically increase the number of marine

mammal detections recorded by observers, they require that marine

mammals be actively calling or echolocating within the detection

range of the system in order to be detected. Detection ranges can vary

substantial as a result of masking from vessel noise, flow noise,

seismic source noise and reverberation, and high sea states.

Other than passive acoustic monitoring, the only other proposed nighttime

mitigation measure is the use of night vision devices. Nevertheless, as candidly

admitted by TGS-NOPEC in its application, these devices are ineffective at detecting

marine mammals at a distance.

2. Time and Area Restrictions

There is a general consensus among the scientific community that

“[p]rotecting marine mammal habitat is…the most effective mitigation measure

currently available” to reduce the harmful impacts of mid-frequency sonar on

10

marine mammals.40 Despite this recognition, only two of the survey applicants even

propose restrictions in the vicinity of, e.g., right whale migration corridors and

nursing areas. For example, with respect to right whales, TDI-Brooks proposes only

very minimal mitigation measures based on an anticipated small number of such

whales in the survey area:

Very few right whales are anticipated within the survey area.

However, the North Atlantic right whale is considered critically

endangered, and special care will be taken to avoid harassment of this

species. Ship speed will not exceed 10 knots when right whales are

observed within the area. Additionally, mother-calf pairs will be

avoided.

This proposal is fundamentally flawed for a number of reasons, including,

most importantly, its failure to acknowledge that a small number of right whales in

the area coupled with the precarious status of this population counsels that there

be even greater protections against take – for the loss of even a single whale will

have dire consequences for long term viability of the entire population.

Even where time and area closures are proposed, the applicants provide very

few details as to their intended implementation. One key source of information

that should be included in setting the parameters of any proposed restrictions is

the Cetacean Density and Distribution Mapping Working Group’s identification of

density and distribution maps for marine mammal populations. This information

will be critical in the identification of marine mammal “hot spots” that should be

either entirely avoided by the proposed surveys or used in the formulation of strict

time and area restrictions.

40 See Correspondence from Jane Lubchenco, Under Secretary of Commerce for Oceans and Atmosphere to Nancy Sutley, Chair, Council on Environmental Quality dated Jan. 19, 2010, available at http://www.nrdc.org/media/docs/100119.pdf; see also Agardy, T., Aguilar Soto, N., Cañadas, A., Engel, M., Frantzis, A., Hatch, L., Hoyt, E., Kaschner, K., LaBrecque, E., Martin, V., Notarbartolo di Sciara, G., Pavan, G., Servidio, A., Smith, B., Wang, J., Weilgart, L., Wintle, B., and Wright, A. A global scientific workshop on spatio-temporal management of noise. Report of workshop held in Puerto Calero, Lanzarote, (June 4-6, 2007); ECS Working Group: Dolman, S., Aguilar Soto, N., Notabartolo di Sciara, G., Andre, M., Evans, P., Frisch, H., Gannier, A., Gordon, J., Jasny, M., Johnson, M., Papanicolopulu, I., Panigada, S., Tyack, P., and Wright, A. Technical report on effective mitigation for active sonar and beaked whales. Working group convened by European Cetacean Society, (2009); OSPAR Commission, Assessment of the environmental impact of underwater noise. OSPAR Biodiversity Series, (2009); Parsons, E.C.M., Dolman, S.J., Wright, A.J., Rose, N.A., and Burns, W.C.G. Navy sonar and cetaceans: just how much does the gun need to smoke before we act? Marine Pollution Bulletin 56: 1248-1257 (2008).

11

3. Other Mitigation Measures

The few and inadequate mitigation measures suggested by the applicants

should be supplemented by additional, global measures with a view toward the

overall impact of the proposed surveys on marine mammals. Such additional

measures, identified by other commenters with regard to similar proposed surveys

in the Gulf of Mexico41, should include (at a minimum) the following:

Activity Caps: “[M]eaningful caps on offshore activities that disrupt marine mammal behavior. As NOAA has found, ‘[t]here is currently a great deal of concern that a variety of human sources of marine sound (e.g., vessel traffic, seismic activity, sonar, and construction activities) are acting in a cumulative way to degrade the environment in which sound-sensitive animals communicate.’ … These effects cannot be eliminated through the use of area closures alone, especially given the long distances at which they may occur ….”

Elimination of Unnecessary Survey Effort: “NMFS should require BOEMRE to eliminate unnecessary duplication of survey effort throughout the Gulf, by rejecting permit applications or requiring modification of permit applications that duplicate, in whole or in part, other surveys occurring in the same locations for the same or similar purposes.”42

Mitigate the Effects of Overlapping Surveys: “NMFS should require separation of seismic vessels to reduce the potential impacts of overlapping sound fields. As NMFS has noted, ‘the zone of seismic exclusion or influence could be quite large [if seismic operations overlap in time], depending on the number, and the relative proximity of the surveys.’”43

VII. Permit Approval of Proposed Surveys Would Not Be Based Upon Best Available Science Under 50 C.F.R. § 216.102(a), NMFS is required to use the “best scientific

evidence available” in making its finding of “negligible impact.” When it comes to

assessing the impacts of seismic surveys, NMFS clearly recognizes that that its current

guidance materials are grossly insufficient.

Indeed, on July 31, 2015, NMFS announced the "availability of a revised version of draft guidance for assessing the effects of anthropogenic sound on marine

41 See July 14 2011 comments submitted by the Natural Resources Defense Counsel regarding the MMPA Incidental Take Application for Oil and Gas Geological and Geophysical Activities in the Gulf of Mexico, at 14 (citations omitted). 42 Id. at 15 (citations omitted). 43 Id. at 16 (citations omitted).

12

mammal species under NOAA’s jurisdiction."44 NMFS further noted that this Draft Guidance "provides updated received levels, or thresholds, above which individual marine mammals are predicted to experience changes in their hearing sensitivity (either temporary or permanent) for all underwater anthropogenic sound sources."45

While NMFS' efforts to enhance guidance materials and give direction to industry is certainly welcomed and appreciated, renowned scientists note that these efforts are not enough. As required, NMFS solicited public comment on the Draft Guidance based on updated scientific information and comments received during the first public comment period."46 In a comprehensive comment letter on this issue, four ocean scientists representing multiple coastal states noted the following shortcomings in the Draft Guidance (direct quotes):

Impact of multiple incidental take permits - NOAA’s proposed guidance fails to effectively account for exposure to sounds originating from multiple sources in close proximity. Instead, the scope of the guidance extends only to evaluating the impact of discrete activities. For determining the number of incidental takes under the Marine Mammal Protection Act and Endangered Species Act, we believe an evaluation of the impact that aggregate noise from multiple sources may have on Permanent Threshold Shift (PTS) onset is essential. Such cumulative impact analysis is already required as part of Environmental Impact Statements carried out under the National Environmental Policy Act. In evaluating the impacts in this case, NOAA should recognize that not only are cumulative effects potentially significant biologically, but agencies using this guidance may be legally required to consider them under NEPA.

Additional sources of noise - Marine noise pollution can stem from many sources. The Draft Guidance seeks to identify the acoustic threshold levels at which marine mammals are likely to experience acute injury from anthropogenic sound. Based on the physical characteristics of the noise, the Draft Guidance divides sound into two categories: impulsive and non-impulsive. Examples of impulsive sound given in the Draft Guidance are underwater high explosives, seismic air guns, and impact pile driving, with sonar and vibratory pile drivers provided as examples of non-impulsive sounds. In our view, the Draft Guidance’s focus on these five sources of acute, incidental exposure to underwater sound serves as a limiting factor to the robustness of this Highly Influential Scientific Assessment. In our view, the Draft Guidance should consider other sources of sound that have the impact

44 80 FR 45642, Draft Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing-Acoustic Threshold Levels for Onset of Permanent and Temporary Threshold Shifts. 45 Id. 46 Id.

13

to damage or affect marine mammal hearing by attaching an appendix of potential sound sources to the Draft Guidance . . . However, we believe that the Draft Guidance could greatly benefit from an explicit recognition of other sources of sound that may lead to acute exposure for marine mammals.

Overlapping TTS recovery periods - While cumulative impacts can be difficult to account for, the current Draft Guidance allows for TTS recovery times that may overlap. During a TTS recovery period, a protected mammal may encounter another sound impulse causing an additional TTS that would be exacerbated by the recovery from the previous exposure. As noted in the Navy report,19 behavioral shifts have been observed to last multiple days during TTS. A long-lasting recovery period, in combination with periodic TTS-inducing sound impulses, has the potential to hold an individual in recovery for extended periods of time, causing a significant impact to its livelihood. Transient and local acoustic noise can impact the livelihood of cetacean populations by increasing stress levels leading to abandonment of important habitats, reduction of foraging efficiency, and loss of reproduction opportunities. The emphasis on short-term responses may not be good proxies of long-term population-level impacts as responses are highly variable between species, age, class, behavioral states, etc.47

VIII. Conclusion For the foregoing reasons, SSL respectfully requests that NMFS deny the applications for incidental harassment related to the geophysical survey activity in the Atlantic ocean.

47 See August 26, 2015 letter to from Alicia Amerson, Annie Brett, Isaac Irby, Neal McMillin in response to NOAA Draft Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammals (citations omitted). Available at https://www.federalregister.gov/articles/2015/07/31/2015-18790/draft-guidance-for-assessing-the-effects-of-anthropogenic-sound-on-marine-mammal-hearing-acoustic.